Dispute Resolution: Mediation

 WHAT IS MEDIATION?

Mediation is a confidential and informal negotiation process in which an impartial third party, a mediator, facilitates settlement discussions between the disputing parties.  Any settlement is voluntary. Unlike a judge in a trial, or an arbitrator in arbitration, the mediator does not impose a decision upon the parties.  In a mediation, the parties themselves decide whether or how to settle the dispute.

SHOULD I MEDIATE MY DISPUTE?

Mediation is a problem solving technique and is a form of alternative dispute resolution. Mediation is widely used to resolve different types of disputes such as business, divorce or community matters. In recent years mediation has been gaining more popularity within the court system because of its advantages and informal setting which bring ease to the parties. The process of mediation offers an informal setting to the parties to resolve their dispute with the help of a mediator. The mediator in most cases is trained and maybe licensed by local, state or national agency. It can either be court-ordered or chosen by the parties involved in any dispute.

WHAT IS THE ROLE OF A MEDIATOR?

The role of a mediator is to maintain their neutrality and to use their training and skills to assist parties in exploring their concerns, identifying areas that must reach resolution and creatively exploring a wide array of possible solutions to the disputed issues. The mediator attempts to focus the attention of the parties upon their needs and interests rather than upon rights and positions.

Despite the mediator’s professional background, he/she may not provide counseling, legal advice or legal representation, and again, they do not have the authority to impose decisions.

For Atlanta, Mediators who provide services through the Fulton County Courts’ Office of Alternative Dispute Resolution meet both State and Fulton County standards which involves a careful evaluation of their educational background, professional experience, mediation training and their skills as a neutral.

IS MEDIATION CONFIDENTIAL?

Mediation is a confidential process by law and by agreement. In mediation, the parties will sign an agreement to mediate that includes provisions governing confidentiality.

According to the Georgia Supreme Court Alternative Dispute Resolution rules, any statement made during mediation or as part of intake by program staff in preparation for mediation is confidential and is not subject to disclosure by the mediator or program staff, and may be used as evidence in any subsequent administrative or judicial proceeding.

However, if parties reach a settlement agreement in mediation, the written and executed agreement or memorandum of agreement is not subject to confidentiality, unless all parties to the proceeding agree so in writing.

Confidentiality does not include:

1.       Mediators and program staff reporting whether or not the parties appeared for mediation;

2.       Threats of imminent violence to self or others; or

3.       If the mediator believes that a child is abused or that the safety of any party or third person is in danger

Another exception to confidentiality is that a mediator or the ADR program may disclose information needed to defend their actions if a complaint is filed against them. However, only documents or communications relevant to such claim or complaint may be revealed only to the extent necessary to protect the neutral or ADR program.

HOW LONG DOES MEDIATION TAKE?

The time required for mediation depends on the nature of the dispute and the number of parties involved. A typical mediation session lasts three hours. However, it is wise for parties to plan for up to three hours.

*Mediation can be scheduled and completed much sooner than it would take to complete a trial.

IS MEDIATION BINDING?

If the parties reach a settlement agreement in mediation, the written and executed agreement or memorandum of agreement may in fact become binding. Parties should understand that signing a settlement can have a significant effect upon their rights and upon the status of their case. However, reaching and signing an acceptable settlement agreement to the dispute is strictly voluntary.

*If after going through the mediation process the parties are unable to reach a settlement agreement, the case will proceed in a regular fashion through the court process.

WHO PAYS FOR MEDIATION?

When the parties consent to mediate or are referred by the court to mediate through the Office of Alternative Dispute Resolution, the cost is set by the court and is always more minimal than the cost of litigating the matter would be otherwise (*costs vary based on length of time needed, but start at just a few hundred dollars).

WHAT ARE THE BENEFITS OF MEDIATION?

·         Mediation can lower the intensity or level of conflict enabling parties to better communicate and explore options that would resolve their dispute.

·         Mediation empowers parties to reach their own decisions versus having outcomes determined by others, such as a judge.

·         Mediation recognizes that all parties have legitimate needs and helps develop alternatives to meeting those needs.

·         Mediation is typically less time consuming, less expensive and allows for greater privacy than going to court.

·         Mediation can set the stage for future cooperative problem solving between parties where there is a need for an ongoing relationship.

HOW SHOULD YOU PREPARE FOR MEDIATION?

Each participant should come to mediation prepared to present and discuss a variety of ways to resolve the dispute to their satisfaction. If the parties are stuck on only one solution to the dispute, it will be more difficult to reach a resolution. For mediation to be successful, parties should come prepared to provide open and honest communication and statement, including providing each party with all information relevant to resolving the dispute.

The purpose of Mediation is to help the disputing parties with the assistance of a Mediator resolve their own dispute at their own pace. The benefits of Mediation and why it is a process that should be considered by many parties involved in disputes are that it is faster, cheaper, and most importantly the parties reach their own mutual and long-lasting agreement. 

*All parties are required to be present at the mediation including those with settlement authority if other than the party.